Opinion
DOCKET NO. A-3061-14T2
06-03-2016
STATE OF NEW JERSEY IN THE INTEREST OF J.K., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant J.K. (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-654-15. Joseph E. Krakora, Public Defender, attorney for appellant J.K. (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent State of New Jersey (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
J.K. appeals from an adjudication of delinquency for conduct which, if committed by an adult, would constitute the crime of robbery, N.J.S.A. 2C:15-1(a). We affirm.
We derive the following facts from the trial record. At approximately 5:50 p.m. on September 15, 2014, the victim R.L. went to a store on the corner of Avon and Bergen Streets in Newark to withdraw money from an ATM. When he left the store he was approached by three teenagers. One of the teenagers demanded that R.L. turn over his money. When R.L. refused, he was physically assaulted. R.L. defended himself against the assault, but fled when a larger group quickly approached to assist the three teenagers. The group of ten to twelve assailants pursued R.L. to the corner of Avon Avenue and continued to assault him. The assault continued until two Essex County Sheriff's Officers, Chris Dickshide and Albert Pasamiento, happened upon the scene, activated their emergency lights and shouted "police[.]" As the officers advanced toward the group the assailants ran.
While Dickshide was attempting to break up the incident his focus was drawn to one of the assailants. Dickshide broadcast a description of the individual as he tended to R.L. Three to five minutes after the broadcast, Officer Dominic Petrucci observed an individual in the vicinity of the assault who matched the description provided by Dickshide. Petrucci detained the individual. Both Dickshide and R.L. responded separately to Petrucci's location and each positively identified J.K. as an assailant while he was sitting in the back of a police car. R.L. responded to a separate location and identified co-defendant I.K. as another assailant.
I.K. was apprehended by law enforcement after his description was transmitted by another officer.
On September 15, 2014, an Essex County juvenile complaint charged J.K. with two acts of delinquency which, if committed by an adult, would constitute second-degree robbery, N.J.S.A. 2C:15-1(a), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). Prior to trial the State moved to amend the complaint to add an aggravated assault charge. J.K. opposed the motion and moved to dismiss the complaint in its entirety. The Family Part judge denied both motions and the trial commenced on December 5, 2014.
At trial, counsel for J.K. and I.K. waived their clients' appearance during R.L.'s testimony. Notwithstanding the juveniles' absence, in his testimony R.L. provided a detailed physical description of the two assailants.
During summation defense counsel argued, for the first time, that R.L.'s show-up identification was impermissible pursuant to Rule 3:11(a) ("An out-of-court identification resulting from a photo array, live lineup, or [show-up] identification procedure conducted by a law enforcement officer shall not be admissible unless a record of the identification procedure is made.") because no record of the show-up was generated by the arresting officers. On December 12, 2014, the judge adjudicated J.K. delinquent on the robbery charge, but did not adjudicate him delinquent of resisting arrest. J.K. filed a motion for reconsideration, again arguing that the show-up identification should have been rejected pursuant to Rule 3:11(a). The judge denied the motion. On that same date, after a dispositional hearing, J.K. was sentenced to a three-year term at the New Jersey Training School for Boys, along with the imposition of statutory fees and penalties. This appeal followed.
J.K.'s motion papers were not included in the record. The State did not submit written opposition to the motion for reconsideration. However, it appears that J.K. challenged the show-up identification predicated upon United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
J.K. raises the following arguments on appeal:
POINT I
THE FAILURE TO COMPLY WITH THE REQUIREMENTS OF [STATE v. DELGADO, 188 N.J. 48 (2006)] DURING THE IDENTIFICATION PROCEDURE REQUIRES REVERSAL (NOT RAISED BELOW).
POINT II
IN A CASE IN WHICH IDENTIFICATION WAS THE SOLE ISSUE, AND THE PROCEDURE USED BY POLICE WAS MANIFESTLY SUGGESTIVE, DEFENSE COUNSEL'S FAILURE TO REQUEST A PRETRIAL WADE HEARING CONSTITUTED INEFFECTIVE ASSISTANCE, REQUIRING REVERSAL (NOT RAISED BELOW).
J.K. argues on appeal that R.L.'s show-up identification was inadmissible because the identification procedure was not recorded by law enforcement in accord with Delgado and State v. Madison, 109 N.J. 223 (1988). The State concedes that the show-up identification was not memorialized in a writing, in non-compliance with Rule 3:11(a) and Delgado, but argues that the adjudication should stand because the judge relied on an in-court identification of J.K. based upon R.L.'s observations of J.K. at the time of the robbery. We agree.
R.L. provided a detailed physical description of J.K. during his testimony, including his approximate age (as a teenager), build, complexion, dress, and hair style. The judge further noted that R.L.'s testimony and description of J.K. was corroborated in the testimony of the sheriff's officers. The judge held the testimony of R.L. to be credible, noting his "adamant" testimony, attention to detail, and ability to recall "who was apprehended and where."
The judge also noted in denying the motion for reconsideration that notwithstanding any violation of Rule 3:11(a), R.L. provided sufficient credible in-court testimony regarding the identification of J.K. as one of the perpetrators:
[B]ut then the [c]ourt could still proceed with the identification in [c]ourt if I feel [the show-up identification] is not tainted. And I can tell you . . . had I precluded the
testimony about the [show-up] identification in the street, [R.L.] would still have been permitted to make an in-[c]ourt identification unless there could have been some connection between the two to show that the out-of-[c]ourt prejudiced the in-[c]ourt.
There was a sufficient amount of time between the out-of-[c]ourt and the in-[c]ourt, and both you and your co-counsel chose not to have your clients present during the direct examination of [R.L.]
. . . .
And he still described each of your clients, and the order in which he saw them after they fled the incident, and I can tell you . . . had it been raised, I would not have found that whatever [show-up] was conducted, and it was a procedural violation solely on the part of the police officers who did not file the report would not have resulted in the ruling that the in-[c]ourt identification was not tainted; that it was credible; and that it should not come in. So even without the argument, which I suggest you are late to the show in making now that the trial is over and your client has been adjudicated, to raise a Rule 3:11 violation.
Delgado, supra, 188 N.J. at 63 conditions admissibility of show-up identifications on adequate documentation of the identification procedure. See also R. 3:11(a) to (d). While it is undisputed that the show-up was not documented here, "[e]ven if the out-of-court identification process used is found to be suggestive and inadmissible, it does not necessarily follow that the witness's in-court identification is so tainted that it too will be inadmissible." Madison, supra, 109 N.J. at 242. We have held that where the record of identification was not preserved and pretrial procedures are impermissibly suggestive, a later in-court identification will still be permitted where the in-court identification is based on an independent source, including the witness's observations at the time of the crime. See, e.g.. State v. Ruffin, 371 N.J. Super. 371, 393-95 (App. Div. 2004); State v. Rodriguez, 264 N.J. Super. 261, 270 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994); State v. Gunter, 231 N.J. Super. 34, 39-40 (App. Div.), cert. denied, 117 N.J. 81 (1989); State v. Davis, 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986).
The judge, as the fact-finder, found the in—court identification testimony of R.L. (which was corroborated by Dickshide) to be persuasive. We are required to accord deference to a trial court's factual findings in a delinquency proceeding. See State ex rel. T.S., 413 N.J. Super. 540, 543 (App. Div. 2010). A trial court's factual findings are "binding on appeal when supported by adequate, substantial, credible evidence." State ex rel. W.M., 364 N.J. Super. 155, 165 (App. Div. 2003). Our deference to those findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). In light of the deference we furnish to the trial judge and after consideration of controlling decisions of law, we find no basis to disturb the judge's decision.
With respect to J.K.'s claim that he was provided ineffective assistance of defense counsel, "[o]ur courts have expressed a general policy against entertaining [ineffective assistance of counsel] claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Although J.K. may rely on material found in the record when making his ineffective assistance of counsel claim, there may be other proofs outside the record. Thus, defendant's ineffective assistance claim is better suited for a post-conviction relief hearing than a direct appeal. Ibid.; see also State v. Morton, 155 N.J. 383, 432-33 (1998); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We defer these claims to defendant's PCR application.
Post-conviction relief is available to juveniles following an adjudication of delinquency. See, e.g., State ex rel. B.P.C., 421 N.J. Super. 329 (App. Div. 2011). --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION